Dozens of pro-life organizations are asking Congress for a probe into testimony made by Supreme Court nominee Elena Kagan, suggesting that she may have lied to senators during her confirmation hearings.
A letter created by Americans United for Life Action and signed by at least 30 state, national and legal organizations asks for “an investigation into discrepancies between Kagan’s testimony before Congress and written documentation of her undue influence on medical organizations while advising President William J. Clinton on partial-birth abortion legislation.”
The letter cites memos authored by Kagan and released by the Clinton presidential library prior to the confirmation hearings.
In advising President Clinton on his veto of a partial-birth abortion ban in 1997, Kagan issued a memo to Clinton citing a key American College of Obstetricians and Gynecologists statement as “the most reliable opinion” on the medical necessity of partial-birth abortion. That same statement was relied upon by both the president and the Supreme Court in justifying opposition to the partial-birth abortion ban.
When asked during her confirmation hearings about any possible, undue influence over the content of the organization statement, Kagan testified that “there was no way in which I would have or could have intervened with (the College) to get it to change its medical views on the question.”
Far from not “intervening,” however, the released memos and other evidence show Kagan directly rewrote a critical portion of the organization statement to contradict the organization’s expert panel and shape the organization findings – and ultimately, the U.S. Supreme Court’s rulings – to match the president’s proabortion politics.
In a June 22, 1996, memo, Kagan admitted that her meeting with the organization was “something of a revelation,” for she learned that “in the vast majority of cases, selection of the partial-birth procedure is not necessary to avert serious adverse consequences to a woman’s health.”
In a Dec. 14 memo of that year, Kagan summarized the official organization report released in October as a “disaster,” for it stated that “a select panel convened by (the College) could identify no circumstances under which this procedure would be the only option to save the life or preserve the health of the woman,” a resounding blow to the president’s position.
But a handwritten note by Kagan, published by Americans United for Life Action in a 54-page ethics report on the controversy, drafts a proposed amendment to the organization statement that would be more palatable to the president, adding the sentence: “A [partial-birth abortion], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and a doctor should be allowed to make this determination.”
Court testimony later revealed that the organization executive board, without consulting the experts who crafted the original statement, inserted the amendment into the final statement almost word for word.
Indeed, in her Senate testimony on June 30, 2010, Kagan admitted writing the amendment in an exchange with Sen. Orrin Hatch, R-Utah.
But when Sen. Tom Coburn, R-Okla., asked her if the amendment influenced or changed the organization’s position, she responded, “My only dealings with (the College) were about talking with them about how to ensure that their statement expressed their views.”
To the 30 or so pro-life groups seeking an investigation, however, Kagan’s defense doesn’t fit the facts.
“We are deeply concerned about Elena Kagan’s conflicting testimony before the Senate Judiciary Committee,” Americans United for Life Action President Charmaine Yoest told LifeNews.com. “There are serious discrepancies between her statements to Senator Hatch and the documented evidence of her actions in December 1996.”
Kagan’s defense also elicited the criticism of several news sites and commentators.
“By reframing (the College’s) judgments, she altered their political effect as surely as if she had changed them,” writes William Saletan in Slate, who also summarized Kagan’s defense as “bogus.”
“Kagan didn’t just ‘clarify’ (the College’s) position,” he writes. “She changed its emphasis. If a Bush aide had done something like this during the stem-cell debate, progressive blogs would have screamed bloody murder.”
The Americans United for Life Action ethics report also cites a June 1, 1997, White House email in which Kagan wrestles with a similar finding by the American Medical Association, which issued a policy stating no situations had been found where a partial-birth abortion would be medically necessary.
Kagan’s email states that she had come from a meeting that focused on “whether the AMA policy can be reversed” and concluded, “We agreed to do a bit of thinking about whether we … could contribute to that effort.”
According to Americans United for Life Action, the AMA and American College of Obstetricians and Gynecologists incidents reflect “a pattern of behavior” from Kagan that has had far-reaching effects.
In fact, in 2000, the U.S. Supreme Court struck down Nebraska’s ban on partial-birth abortion, citing as part of its argument a report from “a select panel” of the College declaring the procedure “may be the best or most appropriate procedure … to save the life or preserve the health of a woman.”
But that phrase, Americans United for Life Action and other commentators point out, wasn’t written by a “select panel” of physicians and researchers, but rather by Kagan.
Working to stop Kagan’s nomination
While the pro-life groups are petitioning U.S. senators to investigate Kagan’s testimony, other organizations are drafting efforts to pressure the Senate into rejecting Kagan’s nomination.
“We will continue to put every member on notice – Republicans and Democrats – that a vote for Kagan is a vote against the U.S. military, a vote against the Constitution, a vote against free speech and a vote for ultra-partisan extremism and activism on the bench,” said Joseph Farah, editor and chief executive officer of WND who is orchestrating the “Stop Kagan” effort that has generated tens of thousands of individual letters to senators.
The “Stop Kagan Campaign” allows any American citizen to generate 100 individually addressed letters to every U.S. senator, each including the name of the sender and all delivered by FedEx for the low price of just $24.95.
According to Farah, Kagan disqualified herself from serving on the Supreme Court with her statement under oath that she has no view of “natural rights.”
“In all my years of observing Washington, I don’t think I’ve ever been more stunned and disappointed by the testimony of a Supreme Court nominee than I was with Elena Kagan,” said Farah. “This is someone, who, from her own testimony, doesn’t believe in the Declaration of Independence, which we just celebrated and commemorated for the 234th time in our nation’s history. This is someone who claims she doesn’t have a view about ‘natural rights’ – those that real Americans believe are unalienable and God-given.”
Farah is asking all of his constituents to join his “Stop Kagan Campaign”, which delivers personalized, individually addressed, anti-Kagan letters to all 100 U.S. senators by FedEx for only $24.95.
The statements by Kagan came in an exchange with Sen. Tom Coburn, R-Okla. Farah said most of the press failed to cover her responses, which he deemed as newsworthy as any she made during the hearings:
Coburn: Do you believe it is a fundamental, pre-existing right to have an arm to defend yourself?
Kagan: Senator Coburn, I very much appreciate how deeply important the right to bear arms is to millions and millions of Americans. And I accept Heller, which made clear that the Second Amendment conferred that right upon individuals, and not simply collectively.
Coburn: I’m asking you, Elena Kagan, do you personally believe there is a fundamental right in this area? Do you agree with Blackstone [in] the natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense? He didn’t say that was a constitutional right. He said that’s a natural right. And what I’m asking you is, do you agree with that?
Kagan: Senator Coburn, to be honest with you, I don’t have a view of what are natural rights, independent of the Constitution. And my job as a justice will be to enforce and defend the Constitution and the laws of the United States.
Coburn: So you wouldn’t embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren’t given in the Constitution that are ours, ours alone, and that a government doesn’t give those to us?
Kagan: Senator Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws. But my job as a justice is to enforce the Constitution and the laws.
Coburn: Well, I understand that. I’m not talking about as a justice. I’m talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?
Kagan: Senator Coburn, I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief.
Coburn: I would want you to always act on the basis of the belief of what our Declaration of Independence says.
Kagan: I think you should want me to act on the basis of law. And that is what I have upheld to do, if I’m fortunate enough to be confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States.
“This woman apparently thinks our rights descend from our Constitution, which is crazy,” said Farah. “The Constitution is there to protect our unalienable, God-given human rights – not to define our rights or to invent them.”
The campaign to deny Kagan confirmation in the Senate, however, began long before the hearings.
“This woman, as president of her university, banned the U.S. military from recruiting on campus,” Farah reminds. “Just contemplate rewarding that kind of vehemently anti-American action with a lifetime appointment to the Supreme Court. Elena Kagan must be stopped.”
He devised the “Stop Kagan Campaign” based on previous successes in generating heavy volumes of mail to members of Congress.
“It’s a phenomenal bargain,” says Farah. “It makes it easy for you to sound off on this historically bad nomination. It’s a small investment. And I am convinced that if enough Americans take advantage of it, Kagan will be stopped – even by this Senate.”
But time is short, Farah says. America is distracted by a floundering economy, a disastrous oil spill and a government that creates new crises on a daily basis, he explains.
Calling Kagan “an activist who wants to govern from the bench,” Farah says there’s a way to give senators a “spine transplant” and prepare them for the most contentious confirmation fight since Clarence Thomas.
“Kagan is a radical antimilitary and proabortion zealot,” said Farah. “This selection by Barack Obama reveals once again his extremist agenda of leaving America undefended, elevating alternative lifestyles to sainthood and exterminating the most innocent human life with reckless abandon and persecuting anyone who tried to stand in the way. In a nutshell, that’s who Elena Kagan is.”
The letter campaign is based on previously successful efforts in which nearly 10 million “pink slips” were delivered to members of Congress opposing nationalization of health care, cap-and-trade legislation, hate-crimes laws and other bills, as well as the current campaign to stop amnesty in the U.S. Senate.
The letter to the senators reads:
“In a few months, the American people will have a chance to speak at the polls again. Almost every analyst and every public-opinion survey suggests the electorate is angry about the direction of the country. I strongly urge you not to show contempt for the will of the people and the Constitution by confirming the Supreme Court nomination of Elena Kagan.
“Kagan is not what Americans want and she is not what the country needs.
“At a time when federal central control is strangling the American economy, she calls for more regulatory authority not just in Washington, but for the president himself.
“At a time when American security is facing internal and external threats and our nation is still engaged in two foreign wars simultaneously, she advocates banning military recruitment on campuses because of her compulsion to see open homosexual behavior flaunted in the ranks.
“At a time when Americans have been stripped of their ability to write their own laws protecting the lives of the unborn, she advocates the creation of task forces to investigate and prosecute peaceful pro-life activities.
“At a time when Americans are recognizing the unique blessings of their Constitution, she advocates the consideration of foreign laws in shaping Supreme Court rulings.
“For all of these reasons and more we will surely learn about in the days ahead, please reject the nomination of Elena Kagan.”